New York Law Review

Tag: zoning law

  • Perlbinder Holdings, LLC v. City of New York, 27 N.Y.3d 118 (2016): Vested Rights and Erroneously Issued Permits

    27 N.Y.3d 118 (2016)

    A party cannot acquire a vested right to develop property in accordance with a permit that was issued in error; any such permit can be revoked by the issuing agency, even if the party relied on the permit in good faith.

    Summary

    The New York Court of Appeals addressed whether Perlbinder Holdings, LLC, acquired a vested right to maintain a large advertising sign after the New York City Department of Buildings (DOB) revoked the permit for the sign. The DOB had initially approved the sign based on an erroneous interpretation of zoning regulations. Perlbinder argued it relied on the permit in good faith, incurring substantial expenses. The Court held that because the permit was issued in error, Perlbinder could not establish a vested right. It reversed the Appellate Division’s decision and dismissed the petition, finding no grounds to compel the city to allow the sign.

    Facts

    Perlbinder owned property with a pre-existing advertising sign. Zoning regulations changed, but the original sign was grandfathered. In 2002, Perlbinder obtained a variance to build a mixed-use building, also seeking to relocate and modify the sign. The original sign was demolished in 2008 due to building violations. Perlbinder applied for new sign permits, which were initially granted by the DOB. However, after a DOB audit, the permits were revoked because the sign violated zoning regulations. Perlbinder appealed to the Board of Standards and Appeals (BSA), which affirmed the revocation. Perlbinder claimed it relied in good faith on the DOB’s approvals, spending substantial funds on the new sign.

    Procedural History

    Perlbinder filed an Article 78 proceeding in Supreme Court, which denied the petition and upheld the BSA’s decision. The Appellate Division reversed, remanding the case to the BSA to determine whether Perlbinder was entitled to a variance based on the New York City Charter, finding the BSA’s denial of considering good faith incorrect. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether Perlbinder acquired a vested right to maintain the new advertising sign despite the fact that the permit was erroneously issued.

    2. Whether the Appellate Division correctly remanded to the BSA to determine if a variance should be granted based on NY City Charter § 666(7).

    Holding

    1. No, because the permit was erroneously issued.

    2. No, because a variance determination was not the appropriate remedy.

    Court’s Reasoning

    The court reiterated the principle that a party can acquire a vested right if they rely on a valid permit, make substantial changes, and incur significant expenses. However, the court emphasized that “Vested rights cannot be acquired, however, where there is reliance on an invalid permit.” The court found the DOB’s initial approval was incorrect as the new sign did not qualify as a grandfathered replacement. The court also held that since the 2008 permit was unlawfully issued, Perlbinder could not rely on it to acquire vested rights. Furthermore, the court held that the Appellate Division erred by effectively converting Perlbinder’s appeal into a variance application under NY City Charter § 666(7) because that provision covers general authority while the request involved a zoning variance which requires different standards and procedures. The court directed that a determination of good faith, if a variance was sought, should be made by the agency.

    Practical Implications

    This case reinforces the importance of valid permits in establishing vested rights. Property owners and developers must ensure permits are properly issued under existing zoning regulations. Reliance on an invalid permit, even in good faith, does not create vested rights. Local government agencies are able to revoke permits issued in error to correct errors, even when the property owner has spent money in reliance on them. This case illustrates how significant a proper zoning analysis is to development. If the permit is invalid from the start, no amount of reliance will save it.

  • Colin Realty Co., LLC v. Town of N. Hempstead, 24 N.Y.3d 96 (2014): Off-Street Parking Variances Treated as Area Variances

    Colin Realty Co., LLC v. Town of N. Hempstead, 24 N.Y.3d 96 (2014)

    A zoning board of appeals should evaluate requests for off-street parking variances by applying the standards for an area variance so long as the property is intended to be used for a purpose permitted in the zoning district.

    Summary

    This case clarifies whether off-street parking variances should be treated as area or use variances. Manhasset Pizza sought to open a restaurant in a storefront in North Hempstead, NY, requiring variances from the town’s off-street parking requirements. The Zoning Board of Appeals (ZBA) granted the variances, treating them as area variances. Colin Realty, a neighboring property owner, challenged this decision, arguing that the variances should have been evaluated as use variances. The New York Court of Appeals held that off-street parking variances are generally treated as area variances when the intended use is permitted in the zoning district, overruling any conflicting suggestion in prior case law.

    Facts

    Fradler Realty Corporation owned a building in a Business A district in North Hempstead. Manhasset Pizza sought to lease a vacant storefront within the building to operate a 45-seat restaurant, a permitted use in the district contingent upon a conditional use permit. The Town Code required 24 off-street parking spaces for the proposed restaurant, a requirement stemming from a 1939 Town Code change. The existing building, constructed before the parking requirements, did not provide the requisite parking. Manhasset Pizza applied for the conditional use permit and requested variances from the parking requirements.

    Procedural History

    The Town of North Hempstead ZBA granted the conditional use permit and the requested variances, treating them as area variances. Colin Realty, a neighboring property owner, filed a hybrid CPLR article 78 proceeding/declaratory judgment action challenging the ZBA’s determination. The Supreme Court denied Colin Realty’s petition, upholding the ZBA’s decision. The Appellate Division affirmed, holding that the ZBA properly treated the parking variances as area variances. Colin Realty appealed to the New York Court of Appeals.

    Issue(s)

    Whether a variance from off-street parking requirements for a permitted use should be treated as a use variance or an area variance.

    Holding

    No, because off-street parking requirements regulate how property area may be developed and are akin to minimum lot size or setback restrictions; therefore, area variance rules apply so long as the underlying use is permitted in the zoning district.

    Court’s Reasoning

    The Court of Appeals analyzed the distinction between use and area variances under Town Law § 267 (1), which defines a use variance as permission to use land for a purpose “which is otherwise not allowed or is prohibited” and an area variance as permission to use land “in a manner which is not allowed by the dimensional or physical requirements.” The court revisited its prior decisions in Matter of Overhill Bldg. Co. v Delany and Matter of Off Shore Rest. Corp. v Linden, acknowledging some ambiguity in the latter regarding parking variances. The Court noted that off-street parking requirements, while differing based on use, regulate how the property’s area may be developed, similar to minimum lot size or set-back restrictions. The Court stated that area variance rules apply to requests to relax off-street parking requirements, “so long as the underlying use is permitted in the zoning district; use variance rules prevail only if the variance is sought in connection with a use prohibited or otherwise not allowed in the district.” The Court explicitly overruled any conflicting suggestion in Off Shore. In this case, because the restaurant was a permitted use, the ZBA properly considered the variance application as a request for an area variance. The court emphasized the importance of considering the benefit to the applicant versus the detriment to the community, as required for area variances under Town Law § 267-b (3) (b). The court noted that in Overhill, “when courts are faced with applications for variances from zoning regulations which prescribe the number of off-street parking spaces required for a building, the rules relating to area variances obtain.” The Court determined the ZBA balanced the statutory factors and based its findings on facts in the record, making its determination rational.

  • Rocky Point Drive-In, L.P. v. Town of Brookhaven, 22 N.Y.3d 730 (2014): Applying the ‘Special Facts’ Exception in Land Use Cases

    Rocky Point Drive-In, L.P. v. Town of Brookhaven, 22 N.Y.3d 730 (2014)

    A landowner seeking to avoid the application of current zoning laws based on the ‘special facts’ exception must demonstrate both entitlement to the requested land use permit as a matter of right under the prior zoning law and that the municipality acted in bad faith, engaged in unjustifiable actions, or abused administrative procedures.

    Summary

    Rocky Point sought to develop a Lowe’s Home Improvement Center on its property in Brookhaven. After numerous attempts by the Town to rezone the property to a classification that would prohibit the development, Rocky Point argued that its site plan application should be reviewed under the prior, more favorable zoning provision, citing the ‘special facts’ exception. The Court of Appeals held that Rocky Point failed to meet the exception’s requirements. Specifically, Rocky Point was not entitled to the permit as a matter of right under the previous zoning law, and the Town’s actions did not constitute bad faith or abuse of administrative procedures. Therefore, the current zoning law applied.

    Facts

    Rocky Point owned land in Brookhaven previously used as a drive-in theater and golf range, uses that became nonconforming under a new “commercial recreation” (CR) zoning classification in 1997. The property was initially zoned “J Business 2” (J-2), which permitted retail stores but not “commercial centers” exceeding five acres. Rocky Point (and its predecessor) repeatedly sought approval to build a Lowe’s Center, a commercial center exceeding five acres. The Town attempted multiple times to rezone the property to CR, but faced legal challenges. Rocky Point argued the Town selectively enforced zoning requirements against it. Rocky Point’s site plan application did not comply with the J-2 zoning requirements because the proposed Lowe’s Center exceeded the acreage limit for commercial centers.

    Procedural History

    Sans Argent, Rocky Point’s predecessor, initially sued the Town after its rezoning efforts failed. Supreme Court initially declared the Town’s rezoning invalid twice. Rocky Point then filed the instant action seeking a declaration that its application was subject to the old J-2 zoning due to the Town’s delays. Supreme Court initially granted summary judgment to the Town, but the Appellate Division reversed, finding triable issues of fact. After a non-jury trial, Supreme Court found for Rocky Point, but the Appellate Division reversed, finding the determinations unsupported by evidence. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the ‘special facts’ exception to the general rule that a case must be decided based on the law as it exists at the time of the decision applies, such that Rocky Point’s site plan application should be reviewed under the previous J-2 zoning classification.

    Holding

    No, because Rocky Point failed to demonstrate entitlement to the requested land use permit as a matter of right under the J-2 zoning classification and failed to show that the Town acted in bad faith, engaged in unjustifiable actions, or abused administrative procedures.

    Court’s Reasoning

    The Court applied the general rule that land use cases are decided based on the law in effect when the application is decided. However, the “special facts” exception applies if the landowner establishes entitlement to the underlying land use application as a matter of right and demonstrates “extensive delay indicative of bad faith,” “unjustifiable actions” by municipal officials, or “abuse of administrative procedures.” The Court found that Rocky Point did not meet the threshold requirement of entitlement to the permit as a matter of right because the proposed Lowe’s Center exceeded the acreage limit for commercial centers under the J-2 zoning. The Court rejected Rocky Point’s argument that the Town selectively enforced the zoning requirements, agreeing with the Appellate Division that Rocky Point failed to provide sufficient factual support for this claim. The Court stated, “[t]he record clearly demonstrates that similarly situated applicants referred to by Rocky Point were not similarly situated at all; they either fell within an exception or were within compliance with the J-2 zoning classification.” The Court also clarified that even under a negligence standard, the special facts exception would not apply because Rocky Point could not meet the initial zoning requirements. Because Rocky Point failed to meet the threshold requirement of entitlement as of right, the Court affirmed the Appellate Division’s decision.

  • Sunrise Check Cashing v. Town of Hempstead, 22 N.Y.3d 481 (2013): Zoning Based on User Identity is Invalid

    Sunrise Check Cashing & Payroll Servs., Inc. v. Town of Hempstead, 22 N.Y.3d 481 (2013)

    A zoning ordinance that prohibits a specific type of business based on disapproval of the business’s clientele or services, rather than the use of the land itself, is an invalid exercise of zoning power.

    Summary

    The Town of Hempstead enacted a zoning ordinance prohibiting check-cashing establishments in most business districts, citing concerns that these businesses exploit young and low-income individuals. Several check-cashing businesses challenged the ordinance. The New York Court of Appeals found that the ordinance was an improper use of zoning power. Zoning regulations must focus on land use, not on the identity or nature of the business occupying the land. The court rejected the Town’s attempt to reframe the ordinance as a public safety measure, finding no evidence that the Town Board had considered this rationale when enacting the law. The Court of Appeals affirmed the Appellate Division’s decision invalidating the ordinance.

    Facts

    The Town of Hempstead adopted section 302(K) of its Building Zone Ordinance, which prohibited check-cashing establishments in all but industrial zones. A memorandum from a deputy town attorney explained the ordinance’s purpose: to discourage young and low-income individuals from using check-cashing services, encouraging them to use traditional banking institutions instead. The memorandum criticized check-cashing businesses, characterizing them as exploitative and detrimental to the community.

    Procedural History

    Several check-cashing establishments sued the Town of Hempstead, seeking a declaratory judgment that section 302(K) was invalid and an injunction against its enforcement. The Supreme Court initially granted summary judgment dismissing the complaint. The Appellate Division reversed, holding that the ordinance was preempted by state banking law. The Town appealed to the New York Court of Appeals.

    Issue(s)

    Whether a zoning ordinance that prohibits check-cashing establishments in most business districts, based on disapproval of the services offered and the clientele served, is a valid exercise of the town’s zoning power.

    Holding

    No, because the zoning power is a power to regulate land use, not to regulate the identity or nature of the business occupying the land. The ordinance was impermissibly based on the perceived social impact of check-cashing businesses, rather than legitimate land-use concerns.

    Court’s Reasoning

    The Court of Appeals relied on the principle that zoning regulations must focus on land use, not on the identity of the user. The Court quoted Matter of Dexter v. Town Bd. of Town of Gates, stating that “it is a fundamental principle of zoning that a zoning board is charged with the regulation of land use and not with the person who owns or occupies it.” The Court found that the Town’s ordinance was directed at the perceived social evils of check-cashing services, rather than legitimate land-use concerns. The court distinguished the case from situations where the nature of the business leads to “negative secondary effects,” such as adult entertainment establishments. The Town attempted to argue that the ordinance was a public safety measure aimed at preventing armed robberies, citing American Broadcasting Cos. v. Siebert. However, the Court rejected this argument, stating that “[d]eference to legislative enactments, at least where the issue is abuse of the zoning power, does not go as far as the Town would have us go.” The Court found no evidence that the Town Board had considered public safety when enacting the ordinance, emphasizing that the record “clearly refutes the idea that section 302(K) was a public safety measure.” The Court emphasized that the explicit rationale offered by the Town’s attorney focused on the *identity* of the users (young and low-income people) and the Town’s policy preference that they use traditional banks, which is impermissible. The ruling highlights the limits of zoning power, preventing municipalities from using zoning to achieve social or economic engineering goals unrelated to land use.

  • Jones v. Town of Carroll, 15 N.Y.3d 141 (2010): Establishing Vested Rights for Landfill Expansion

    Jones v. Town of Carroll, 15 N.Y.3d 141 (2010)

    A landowner with a pre-existing, permitted landfill operation has a vested right to expand that operation on the entire parcel, even if only a portion was actively used before a restrictive zoning ordinance was enacted, provided they demonstrate an intent to use the entire parcel for that purpose.

    Summary

    Donald and Carol Jones were granted a special use variance in 1989 to operate a construction and demolition (C&D) landfill on their 50-acre property. They obtained a DEC permit for a small portion of the land. In 2005, the Town of Carroll enacted a zoning law restricting landfill expansion. The Joneses sued, arguing their prior variance established a right to use the entire parcel. The New York Court of Appeals held that because landfill operations are akin to mining, where the land itself is a resource, the Joneses had a vested right to use the entire property as a landfill, contingent upon continued DEC approval, as their actions demonstrated an intent to use the whole parcel for that purpose before the restrictive zoning law was enacted. The 2005 local law could not extinguish their legal right.

    Facts

    In 1984, Donald and Carol Jones purchased 50 acres in the Town of Carroll. In 1989, the Town granted them a special use variance for a C&D landfill on the entire property, subject to DEC regulation. Subsequently, the Joneses obtained a DEC permit to operate the landfill on a portion of the land (initially two acres, later expanded to three). The landfill operated as an active business. The Joneses dedicated areas around the landfill for related purposes, purchased heavy equipment, employed a dozen people, developed expansion plans, and discussed future operations with investors.

    Procedural History

    In 2005, the Town enacted a zoning law restricting landfill expansion. The Joneses sued, seeking a declaration that the new law did not apply to their property. Supreme Court initially granted summary judgment to the Joneses. The Appellate Division modified, denying summary judgment and vacating the declaration, finding the law applicable since the DEC permit covered only three acres and the remaining acreage was merely a contemplated future expansion. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a landowner with a special use variance for a landfill on their entire property, but with a DEC permit covering only a portion, has a vested right to utilize the entire property for landfill operations, thereby precluding the application of a subsequently enacted zoning law restricting landfill expansion.

    Holding

    Yes, because the operation of a landfill is similar to mining, where the land itself is a resource, and the landowners demonstrated an intent to use the entire parcel for that purpose before the restrictive zoning law was enacted.

    Court’s Reasoning

    The Court of Appeals relied on its precedents in Syracuse Aggregate Corp. v. Weise, Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, and Glacial Aggregates LLC v. Town of Yorkshire, which addressed vested rights in mining operations. The Court extended the rationale of those cases to landfills, noting that landfills, like mines, involve the consumption of the land itself. The Court reasoned that landowners can reasonably be expected to hold land in reserve for future landfill expansion. The court stated, “As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it…the use of property as a landfill, like a mine, is unique because it necessarily envisions that the land itself is a resource that will be consumed over time.”

    The Court emphasized that the Town had previously acknowledged the suitability of the entire parcel for landfill use by granting the variance. The Joneses’ actions, such as purchasing equipment and developing expansion plans, further demonstrated their intent to use the entire property for landfill operations. The court concluded that limiting the vested right to the area covered by the DEC permit would be unreasonable. “The fact that the DEC permit covered only a limited area is not determinative of plaintiffs’ rights over the remaining 47 acres of the parcel… Instead, the factors to examine are whether the operation of a C & D landfill was a lawful use on the property prior to the enactment of the 2005 zoning law and whether plaintiffs’ activities before that time manifested an intent to utilize all of their property in a manner consistent with that purpose.”

  • Glacial Aggregates LLC v. Town of Yorkshire, 14 N.Y.3d 127 (2010): Establishing Vested Rights and Nonconforming Uses in Zoning Law

    Glacial Aggregates LLC v. Town of Yorkshire, 14 N.Y.3d 127 (2010)

    A property owner acquires a vested right to continue a prior nonconforming use when, in reliance on local permission, they make substantial changes or incur significant expenses, even if a zoning law is subsequently enacted.

    Summary

    Glacial Aggregates sought to mine sand and gravel in a town with no zoning laws. After obtaining a DEC mining permit and investing substantially in preparations, the town enacted a zoning law requiring a special use permit for mining. The town initially acknowledged Glacial’s right to mine but later reversed its position. Glacial sued, claiming a vested right and prior nonconforming use. The Court of Appeals held that the jury could reasonably find Glacial had a vested right and a prior nonconforming use, considering Glacial’s significant investment and preparatory actions taken before the zoning law’s enactment. The case highlights how municipalities cannot retroactively impair vested rights without due process.

    Facts

    Glacial Aggregates acquired land in the Town of Yorkshire, which had no zoning laws, to operate a sand and gravel mine. Glacial spent approximately $500,000 on engineering and environmental studies to obtain a mining permit from the DEC. Glacial excavated material for testing, cleared trees, surveyed the land, and drilled test holes. The Town Board initially declared support for Glacial’s operation but later reversed course by enacting a zoning law requiring a special use permit, effectively preventing Glacial from mining without one. This reversal undermined Glacial’s financing and operations.

    Procedural History

    Glacial sued the Town, seeking a declaration that it could mine without a special use permit, alleging a vested right and a prior nonconforming use. The trial court denied the Town’s motion for a directed verdict, and the jury found in favor of Glacial, awarding damages. The Appellate Division reversed, granting the Town’s motion for a directed verdict and declaring that Glacial had neither a lawful nonconforming use nor a vested right. Glacial appealed to the New York Court of Appeals.

    Issue(s)

    Whether Glacial Aggregates established a vested right to mine its property based on substantial expenditures and actions taken in reliance on the absence of zoning regulations and initial town approval.

    Holding

    Yes, because Glacial made substantial expenditures and took significant actions to prepare the property for mining in reliance on the Town’s initial permission and the absence of zoning laws, a jury could reasonably find that Glacial had acquired a vested right and a prior nonconforming use.

    Court’s Reasoning

    The Court of Appeals reasoned that existing nonconforming uses are generally constitutionally protected. A vested right is established when a landowner, relying on a legally issued permit (or, in this case, the absence of zoning restrictions and initial approval), makes substantial changes and incurs substantial expenses, such that the municipal action causes serious loss. The court distinguished this case from others by emphasizing that the Town had no zoning laws when Glacial began its operations, and the key was not the DEC permit, but the unqualified permission initially enjoyed from the Town. The court noted Glacial’s $500,000 expenditure on DEC permitting costs was a significant investment. The court further noted that Glacial’s actions, such as clearing trees, surveying, and test drilling, were sufficient to demonstrate an overt manifestation of intent to mine the property before the zoning ordinance took effect. Quoting Buffalo Crushed Stone, Inc. v Town of Cheektowaga, 13 NY3d 88 (2009), the Court stated that mining permits are “strong evidence of a manifestation of intent to mine a given area.” The Court found that the jury could reasonably conclude that Glacial’s improvements were essentially valueless due to the Town’s actions.

  • Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 13 N.Y.3d 88 (2009): Establishing Prior Nonconforming Use for Quarrying Operations

    13 N.Y.3d 88 (2009)

    A quarrying company can establish a prior nonconforming use for its entire property, including areas held in reserve for future excavation, if it demonstrates a clear intent to use the property for quarrying purposes, even if actual excavation has not occurred on every portion of the land before the enactment of restrictive zoning ordinances.

    Summary

    Buffalo Crushed Stone (BCS) sought a declaratory judgment that zoning restrictions were void on unexcavated portions of its quarry. The Town of Cheektowaga argued its zoning ordinances were enforceable. The Court of Appeals held that BCS demonstrated a prior nonconforming use for most of its property, including areas held as mineral reserves, due to its long-standing quarrying operations and expressed intent to utilize the entire property for that purpose. However, factual issues remained regarding specific subparcels, requiring further inquiry.

    Facts

    BCS and its predecessors operated a hard-rock quarry on approximately 280 acres in Cheektowaga for 80 years. The land was acquired between 1929 and 1992 and dedicated exclusively to quarrying. The disputed subparcels were primarily mineral reserves not yet actively quarried. The Town enacted zoning ordinances in 1942 and 1969. The 1969 ordinance permitted continuation of nonconforming activities but prohibited their extension or enlargement. BCS argued it had a prior nonconforming use right for the unexcavated areas.

    Procedural History

    BCS sued for a declaratory judgment. The Supreme Court ruled that some subparcels had nonconforming use status, while others did not. The Appellate Division modified, granting the Town summary judgment on additional subparcels. The Court of Appeals modified the Appellate Division order, finding in favor of BCS on some parcels and remanding others for further proceedings.

    Issue(s)

    1. Whether BCS established a prior nonconforming use for subparcel 5, despite the presence of Indian Road dividing it from actively quarried areas.
    2. Whether BCS established a prior nonconforming use for subparcel 25D, considering the timing of its acquisition and the existence of quarrying permits.
    3. Whether BCS established a prior nonconforming use for thoroughfares/roadway subparcels (28A/28B, 29A/29B, 30A/30B, 31-33), given their potential abandonment as public roadways.
    4. Whether BCS established a prior nonconforming use for subparcels 17C/25C and 12B/25I, based on preparations for quarrying before the 1969 ordinance.

    Holding

    1. Yes, because the relatively narrow Indian Road did not negate the company’s long-standing intent to quarry both sides of the road.
    2. Remanded for factual determination, because the court needed to determine when BCS received legal title to the land.
    3. Remanded for factual determination, because the court needed to determine whether these thoroughfares were abandoned before the 1969 zoning ordinance.
    4. Yes, because BCS made its intent to quarry clear before 1969 by preparing the land and securing quarrying permits.

    Court’s Reasoning

    The Court relied on Syracuse Aggregate Corp. v. Weise, which recognized the unique nature of quarrying: “a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed.” The Court found that BCS and its predecessors acquired the property exclusively for mining. The Court stated that for subparcel 5, the narrow roadway was not a physical separation and cited evidence of BCS’s intent to mine the area. As to subparcel 25D and the thoroughfares, issues of fact remained concerning when BCS obtained rights to the land and when the roadways were abandoned. For subparcels 17C/25C and 12B/25I, the court found that the actions of clearing the land and obtaining quarrying permits demonstrated an intent to quarry them in the future. The dissenting opinion argued that Indian Road separated parcel 5, making it ineligible for nonconforming use status and that a mining permit was required for parcel 25D to be lawfully mined.

  • Haberman v. Zoning Board of Appeals, 8 N.Y.3d 269 (2007): Authority of Counsel to Extend Variance Time Limits

    Haberman v. Zoning Board of Appeals, 8 N.Y.3d 269 (2007)

    When a zoning board of appeals has voted to grant a variance, the board’s attorney, acting with actual or apparent authority, may agree to extend the time to build the improvements permitted by the variance without requiring a second board meeting and vote.

    Summary

    Sinclair Haberman obtained a variance from the Long Beach Zoning Board of Appeals (ZBA) to construct a residential complex. A subsequent dispute was resolved by a stipulation that required Haberman to obtain new variances with time limits for applying for building permits. Haberman paid the city $200,000 for public improvements, which the city failed to complete on time. Haberman agreed to extend the city’s deadline in exchange for tolling the time limits on his building permits. Years later, the ZBA revoked Haberman’s building permit, arguing the extension required a new ZBA vote. The Court of Appeals held that the ZBA’s attorney’s agreement to extend the time was binding, as the attorney had at least apparent authority and a new ZBA vote was not required.

    Facts

    Sinclair Haberman sought a variance to build a four-tower residential condominium complex. The ZBA granted the variance, but a dispute arose after one tower was built. A 1989 stipulation settled Haberman’s lawsuit against the City and ZBA, requiring him to apply for new variances subject to time limits for building permit applications. Haberman also agreed to pay $200,000 to the City for public improvements, including underground utility lines, to be completed by the City within two years. The City failed to meet the deadline, and Haberman agreed to extend the deadline, contingent upon tolling the time limits on his building permits.

    Procedural History

    Haberman applied for and received new variances in 1989. The City failed to meet the deadline for the utility lines. In 1992, Haberman agreed to extend the City’s deadline in exchange for tolling his time to apply for building permits, memorialized in a letter agreement signed by the City’s Corporation Counsel, representing the ZBA. In 2002, Haberman applied for a building permit, which the Building Department issued in 2003. The ZBA then revoked the permit, arguing Haberman missed the 1989 stipulation deadline and the extension was invalid. Haberman sued to annul the revocation. The Supreme Court annulled the ZBA’s action, but the Appellate Division reversed, finding the extension unenforceable. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the ZBA is bound by its attorney’s agreement to extend the time to apply for building permits, or whether such an extension requires a new vote by the ZBA.

    Holding

    No, the ZBA is bound by its attorney’s agreement, because the attorney had at least apparent authority to act on the ZBA’s behalf and a new ZBA vote was not required for the extension.

    Court’s Reasoning

    The Court of Appeals reversed the Appellate Division, holding that the Corporation Counsel’s agreement to extend Haberman’s time to apply for building permits was binding on the ZBA. The Court reasoned that parties are generally bound by their attorneys’ agreements. While granting a variance requires ZBA action, extending the duration of a variance does not require the same formality. Citing Matter of New York Life Ins. Co. v Galvin, 35 NY2d 52, 59 (1974), the Court noted that an extension does not require a new application, public notice, or a hearing. The court found no basis to require a ZBA vote for an extension. The agreement was in writing, negotiated by counsel, and approved by the court. The City received a benefit (extension of time for utility work) in exchange for the extension granted to Haberman. The Corporation Counsel, as the ZBA’s attorney, had at least apparent authority. The Court emphasized the unfairness of invalidating the agreement years later due to a procedural requirement not mandated by statute or precedent. The court stated, “It would be unfair to hold, many years after the event, that the lawyer’s agreement was a nullity because the parties did not follow a procedure that no statute and no precedent required.”

  • Palm Management Corp. v. Goldstein, 9 N.Y.3d 337 (2007): Reissuance of Identical Certificate of Occupancy Does Not Restart Appeal Period

    Palm Management Corp. v. Goldstein, 9 N.Y.3d 337 (2007)

    The reissuance of a certificate of occupancy that is substantially identical to a prior certificate does not create a new 60-day period for appealing the determinations made in the original certificate.

    Summary

    Palm Management Corporation owned an inn with a staff dormitory and an awning, uses authorized by certificates of occupancy issued in 1989 and 1993. Neighbors, after failing to challenge these initial certificates, attempted to appeal the reissuance of a certificate in 2003, claiming the uses were unlawful. The New York Court of Appeals held that the reissuance of a substantially identical certificate of occupancy does not restart the 60-day appeal period under Village Law § 7-712-a (5) (b). This decision ensures repose for property owners who rely on unchallenged certificates, preventing endless cycles of appeals based on mere reissuances.

    Facts

    Palm Management Corporation operated an inn located in a residential zone, a lawful nonconforming use predating the zoning ordinance. The inn included a former barn used as a staff dormitory and an awning over the patio. In 1987, a building permit was issued for the awning. Certificates of occupancy issued in 1989 and 1993 approved both the dormitory and the awning. The 1989 certificate stated the inn could be occupied as a “legal preexisting nonconforming…building occupied as a hotel with…a detached two-story frame building occupied as help’s quarters.” The 1993 certificate contained the same language and referenced a “slate patio partially covered with an awning.” No appeals were filed within 60 days of either issuance.

    Procedural History

    In 1999, neighbors complained, but a Code Enforcement Officer declined to disturb the uses, citing the 1987 permit and 1993 certificate. The neighbors’ appeal to the ZBA was denied in 2001 because the officer made no new determination and challenges were time-barred. In 2003, a new certificate of occupancy was issued for refinancing purposes, mirroring the prior certificates. Within 60 days, neighbors appealed, and the ZBA annulled portions related to the dormitory and awning. Palm Management then initiated a CPLR article 78 proceeding to annul the ZBA’s determination. The Supreme Court dismissed the proceeding. The Appellate Division modified, holding res judicata barred the ZBA’s action. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the issuance of a new certificate of occupancy that is substantially identical to prior certificates constitutes a new “order, requirement, decision, interpretation or determination” under Village Law § 7-712-a (5) (a), thereby restarting the 60-day appeal period for challenging the uses authorized by the original certificates.

    Holding

    No, because the reissuance of a substantially identical certificate of occupancy does not represent a new determination subject to a new appeal period under Village Law § 7-712-a (5) (b).

    Court’s Reasoning

    The Court of Appeals reasoned that Village Law § 7-712-a (5) (b) sets a 60-day limit for appeals to the ZBA from an administrative official’s determination. The purpose of this time limit is to provide certainty and repose for property owners and those who deal with the property, allowing them to rely on the validity of a certificate of occupancy once the appeal period has expired. The court emphasized that the 2003 certificate, as it related to the dormitory and awning, merely repeated prior authorizations. The village official did not make a new decision or determination regarding these uses; they were already approved years before. Allowing a new appeal period each time a certificate is reissued would undermine the purpose of the statute of limitations. The court stated, “[T]he mere repetition, in words or substance, of an authorization contained in the old certificate of occupancy should not be treated as a newly appealable ‘order, requirement, decision, interpretation or determination.’” The Court declined to address whether a certificate of occupancy unchallenged within the initial 60-day period provides perpetual immunity, limiting its holding to the specific facts: a substantially identical reissuance does not trigger a new challenge period. Judges Kaye, Ciparick, Graffeo, Read, and Pigott concurred. Judge Jones took no part.

  • Matter of Peterson v. Town of N. Greenbush, 9 N.Y.3d 246 (2007): Defining ‘Adjacent Land’ in Zoning Amendments and SEQRA Timing

    Matter of Peterson v. Town of N. Greenbush, 9 N.Y.3d 246 (2007)

    In determining whether a supermajority vote is required for a zoning amendment under Town Law § 265(1), the measurement of “adjacent land” extends 100 feet from the boundary of the rezoned area, not the boundary of the entire parcel; furthermore, a challenge to a zoning amendment under SEQRA must be commenced within four months of the amendment’s enactment, not the completion of the SEQRA process, unless the SEQRA process itself directly inflicts a concrete injury.

    Summary

    This case addresses two critical aspects of zoning law: the interpretation of “adjacent land” for protest petitions requiring a supermajority vote on zoning amendments, and the statute of limitations for challenging zoning decisions under the State Environmental Quality Review Act (SEQRA). The Court of Appeals held that the 100-foot measurement for adjacent landowners objecting to a zoning change starts at the rezoned area’s boundary, not the property’s outer boundary. Additionally, the Court clarified that SEQRA challenges to zoning amendments must be filed within four months of the zoning enactment, reaffirming the principle that the injury occurs when the zoning changes, not necessarily when the SEQRA process concludes.

    Facts

    The Town of North Greenbush considered rezoning a large area near the intersection of Routes 4 and 43 to allow retail development, requested by landowners John and Thomas Gallogly. The Town released a draft generic environmental impact statement (DGEIS) and, following public input, adopted a final generic environmental impact statement (GEIS) that included an access management plan to mitigate traffic impacts. The final GEIS did not specify the timing of the proposed improvements. A findings statement approved the project, including the rezoning, but deferred the timing of mitigation measures. Opponents of the rezoning presented a protest petition claiming to represent over 20% of landowners within 100 feet of the rezoned area, based on measurements from the tax map parcel boundaries. The Town rejected this, measuring from the actual rezoned boundary, which excluded a buffer zone within the Gallogly property.

    Procedural History

    After the Town Board approved the rezoning by a 3-2 vote, opponents filed an Article 78 proceeding alleging violations of Town Law § 265(1) and SEQRA. The Supreme Court initially granted the petition and annulled the rezoning based on the Town Law claim. The Appellate Division reversed, dismissing the petition, finding the protest petition insufficient, the SEQRA claims time-barred, and the SEQRA claims meritless. The Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    1. Whether Town Law § 265(1) requires measuring the 100-foot distance for protest petitions from the boundary of the rezoned area or the boundary of the entire parcel containing the rezoned area?

    2. Whether the statute of limitations for a SEQRA challenge to a zoning amendment runs from the adoption of the rezoning or the completion of the SEQRA process?

    3. Whether the Town complied with SEQRA requirements in its environmental review of the rezoning?

    Holding

    1. No, because the “one hundred feet” must be measured from the boundary of the rezoned area, not the parcel of which the rezoned area is a part.

    2. Yes, because in this case the statute of limitations ran from the adoption of the rezoning, not from the earlier completion of the SEQRA process.

    3. Yes, because the Town identified relevant environmental concerns, took a “hard look” at them, and provided a reasoned basis for its determination.

    Court’s Reasoning

    Regarding Town Law § 265(1), the Court reasoned that the statute’s language, referring to “land included in such proposed change,” indicates measurement from the rezoned area itself. This interpretation ensures fairness by linking the right to compel a supermajority vote to the proximity of one’s property to the area actually affected by the zoning change. The Court dismissed concerns about “buffer zoning,” stating that a buffer of 100 feet or more appropriately insulates neighbors from compelling a supermajority vote.

    Regarding SEQRA, the Court reaffirmed the principle from Matter of Save the Pine Bush v City of Albany, holding that challenges to zoning amendments under SEQRA must be brought within four months of the amendment’s enactment. The Court distinguished Stop-The-Barge v Cahill, noting that it did not involve the enactment of legislation. Here, the petitioners’ injury was contingent until the Town Board approved the rezoning. The Court clarified that the statute of limitations might run from the SEQRA process’s completion if the SEQRA process itself, rather than the rezoning, directly inflicted the injury. The court stated, “that a proceeding alleging SEQRA violations in the enactment of legislation must be commenced within four months of the date of enactment of the ordinance.”

    Finally, the Court found that the Town complied with SEQRA by adequately addressing traffic concerns and providing a reasonable explanation for its proposed courses of action. The Court deferred to the Town’s judgment, stating it may not substitute its judgment for that of the Town’s governing body and noted the town’s comment that a more precise plan for traffic mitigation was impractical until the Town could know “which parcels will be developed and when.” The Court noted that the document in question was a generic environmental impact statement, allowing for broader and more general analysis.